The Supreme Court of the State of Colorado 2 East 14 th Avenue • Denver, Colorado 80203

202 1 CO 3 1 Supreme Court Case No. 20 SA 324 Original Proceeding Pursuant to C.A.R. 21 Arapahoe County District Court Case No. 19 CR 1088

Honorable Michael J. Spear , Judge

In Re Plaintiff : The People of the State of Colorado ,

v. Defendant : Alexander Carlos Nunez

. Rule Made Absolute en banc May 17, 2021
Attorneys for Plaintiff : John Ke lln er, District Attorney, Eighteenth Judicial District Susan J. Trout , Senior Deputy District Attorney Centennial, Colorado Attorneys for Defendant: Megan A. Ring, Public Defender Zac k Tennant , Deputy Public Defender Centennial , Colorado JUSTICE HART delivered the Opinion of the Court.2

¶1 Colorado’s speedy trial statute , § 18

- 1

- 405, C.R.S. (2020), requires that a criminal defendant be brought to trial within six months of ent e r ing a plea of not guilty unless the time for trial is tolled for one of several statutorily specified reasons. Alexander Nunez was not brought to trial within his speedy tri al
timeframe , which expired on June 12, 2020 . Instead, about six weeks after that date, the trial court declared a mistrial in the case and stated that the mistrial was retroactive to April 30, 2020. The court reasoned that Crim

. P. 24(c)(4) would have
p ermitted it to declare a mistrial at the April 30 pretrial readiness hearing because
of its inability to safely assemble a fair jury pool at that time in light of the COVID

19 pandemic. Because the speedy trial statute excludes delay caused by a mistrial
from the six

- month calculation, the court concluded that Nunez’s speedy trial deadline had not passed.
¶2 Nunez filed a petition to show cause under C.A.R. 21, arguing that the trial court lacked jurisdiction over his case after the speedy trial deadline pass ed on June 12 and that it could not declare a retroactive mistrial to reassert jurisdiction.
W e granted Nunez’ s petition, and we now make the rule absolute. The charges against Nunez must be dismissed with prejudice.



### I. Facts and Procedural History
¶3 On August 19, 2019, N unez entered not guilty pleas to charges of possession with intent to distribute a controlled substance, attempted possession with intent3

to distribute , and obstruction of a peace officer. His original speedy t rial deadline

was February 7 , 2020 , but on December 13, 2019, Nunez requested a continuance, which reset his speedy trial deadline to June 12, 2020. A pretrial readiness conference was set for April 30, 2020, with a trial date of May 4, 2020.
¶4 In the inter vening months, COVID

- 19 descended on the world, causing major disruptions to, among many other things, the justice system in Colorado.
On March 2 4 , 2020, the Chief Judge in the Eighteenth Judicial District issued an Order providing that the public health concerns created by COVID

- 19 required that no jury trials be scheduled between th en and May 15 , 2020

. That Order was extended on May 17 to preclude calling a jury until July 6, 2020. On April 7, the
Colorado Rules of Criminal Procedure were amended to pe rmit a court to “declare
a mistrial

. . . on the ground that a fair jury pool cannot be safely assembled

. . . due

to a public health crisis.” Crim. P. 24(c)(4).
¶5 At the April 30 hearing, although the trial court had issued a writ for his
appearance, N unez did not appear in person , apparently because the Arapahoe County Sherif f ’s Office was not executing writs in light of the Chief Judge’s O rder. At that hearing, the P eople moved for a continuance pursuant to
section 18

- 1

- 405( 6 )( g ), which permits a court to continue a trial without running afoul of the speedy trial requirements based on the prosecution ’ s inability to4

prepare. The trial court did not rule on this motion

. Rather, referenc ing the recent
amendment to the Rules of Criminal Pro cedure, the trial court s tated : Frankly, due to the rule changes that have occurred over the course of the last 30 days permitting the [c] ourt to find a mistrial, and a public health crisis exists such as to make it unsafe for jurors to report to the court house, I can obviously make that particular finding at this time.

. . . So I’m going to go ahead and vacate the trial for Monday, recognizing

. . . the futility of proceeding

. . . and that vacating is based primarily upon the [c] ourt’s ability to declare mistrials in these types of situations as currently exist in our community. The court vacat ed the May 4 trial setting and rescheduled the trial for June 1 , 2020 , which , t he court noted , was the only trial date available before Nunez’s speedy
trial deadli ne on June 12 , 2020

. ¶6 At a pretrial readiness hearing on May 28 , the People moved for a mistrial based on the public health crisis , which would have toll ed the speedy trial deadline for up to three months under section 18

- 1

- 405(6)(e). Defense counsel
noted that Nunez , who was again not present because the Arapahoe County Sheriff’s Office was not transporting defendants to the courthouse , was not willing

to consent to any waiver of his speedy trial right. The court asked the parties whether they agreed that the speedy trial deadline a s of that time was June 12, 2020. Both the People and defense counsel agreed.
¶7 The court did not expressly rule on the Peopl e’s motion for a mistrial. Instead, the court stated that “I have some concerns about the declaration of a mistrial pursuant to our Amend ed Rule 24, trial jurors being summoned during5

the public health crisis, so I would like to have Mr. Nunez present.” The court
then vacated the trial set for June 1 and set a date of June 19 for a hearing on “what would be the operative date for the declaration of the mistrial pursuant to the

statute , . . . whether it’s 90 days from today’s date plus the potential for 13 , 14 days, whatever, and then also whether or not it should start on the date we can actually get Mr. Nunez here.”
¶8 Defense counsel noted that , although he was available for a hearing on June 19, he was preserving his right to argue that setting a hearing o n this issue after June 12 would run afoul of Nunez’s speedy trial right. On June 15, Nunez filed a motion to dismiss, arguing that his speedy trial deadline had passed and his case
must be dismissed.
¶9 The court ultimately held a hearing on this motion on July 29, 2020. At that hearing, the court denied the motion to dismiss, explain ing that “the [ c ] ourt obviously was a little reluctant to act without the defendant being present and hearing from the [c] ourt the problems, but frankly the April 30 th pretrial readiness conference would have been the date by which the Court would have declared a mistrial due to the fact that I wasn’t able to call jurors into the building under any
scenario.”
¶10 Having declared a mistrial retroactive to April 30, the court noted that the following day

— July 30

— was the new speedy trial deadline under6

section 18

- 1

- 405(6)(e), which permits exclusion of three months from the speedy
trial calculation due to a mistrial . The court the n declared a second mistrial
because of its continuing inability to assemble a fair jury pursuant to Crim P. 24(c)(4).
¶11 Nunez filed this petition pursuant to C.A.R. 21 , and we granted the petition.


### I I
. Jurisdiction
¶12 The exercise of this court’s original juri sdiction under C.A.R. 21 is entirely discretionary

. People v. Lucy , 2020 CO 68 , ¶ 11 , 467 P.3d 332 , 335 ; C.A.R. 21(a)(1).
R elief pursuant to Rule 21 is “an extraordinary remedy that is limited in both purpose and availability.” People in Int

. of T.T. , 2 019 CO 54, ¶ 16, 442 P.3d 851,
855

– 56 (quot ation omitted )

. In the past, we have exercise d jurisdiction “when an appellate remedy would be inadequate, when a party may otherwise suffer irreparable harm, [or] when a petition raises issues of significant public importance that we have not yet considered.” People v. Kilgore , 2020 CO 6 , ¶ 8,
455 P .3d 746, 748 (citations and quotation omitted). Further, we have opted to grant relief when “a trial court acts in excess of its jurisdiction or without jurisdiction.” Chessin v. Off

. of Att’y Reg ul . Couns

. , 2020 CO 9, ¶ 8, 458 P.3d 888, 890 (quot ation omitted)

. ¶13 In view of these principles, relief under C.A.R. 21 is appropriate here for at least two reasons. First, as we have previously recognized, “[r]elief in the nature7

of prohibition under C.A.R. 21 is an appropriate remedy when a district court is
p roceeding without jurisdiction to try a defendant in violation of his right to a speedy trial.” Marquez v. Dist. Ct

. , 613 P.2d 1302, 1304 (Colo. 1980). I n this case,
the trial court acted without jurisdiction when it set a trial date for Nunez after the
time limit under Colorado’s speedy trial statute, § 18

- 1

- 405 , had passed. See Hampton v. Dist. Ct

. , 605 P.2d 54, 56 (Colo. 1980)

. ¶14 And s econd, if we declined to exercise our original jurisdiction, Nunez
would be w ithout an y adequate remedy. Sec tion 18

- 1

- 405 (1) requires dismissal with prejudice if a defendant’s statutory speedy trial right is violated. Nunez has a right not to be tried in this case, so even a successful appeal in his case would require him to first be subje cted to the very trial he is entitled by statute to avoid.
¶15 Based on the foregoing, we conclude that our exercise of jurisdiction over this case pursuant to C.A.R. 21 is warranted.


### II I
. Analysis
¶16 Colorado’s speedy trial statute is intended to safeguard a defendant’s constitutional right to a speedy trial

. Mosley v. People , 2017 CO 20, ¶ 17, 392 P.3d 1198, 120 2

. Whether a defendant’s statutory speedy trial right has been violated is a matter of statutory interpretation and is therefore reviewed de novo. Id. at ¶ 15,
392 P.3d at 1202.8

¶17 Colorado’s speedy trial statute provides that a defendant must be brought
to tri al “within six months from the date of the entry of a plea of not guilty” or the “pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense.” § 18

- 1

- 405(1). The language of the speedy trial statute is mandatory

— it leaves no discretion for the trial court to make exceptions to the six

- month rule beyond those specifically
enumerated in section 18

- 1

- 405(6). People v. DeGreat , 2020 CO 25, ¶ 13 , 461 P.3d 11 , 15 ; People v. Gallegos , 946 P.2d 946, 949 (Colo. 1997); People v. Byrne , 762 P.2d 674, 676 (Colo. 1988).
¶18 The People argue that three of the enumerated statutory tolling provisions could be applicable to this case. First, they note that the court could have declared

a mistrial because of the public h e alth emergency and that up to three months can be excluded from calculation of the speedy trial deadline for any mistrial

. See
Crim. P. 24 (c)(4) ; § 18

- 1

- 405(6)(e ) . Second , they argue that the defendant was not
available b ecause the Arapahoe County Sheriff’s Office was not transporting prisoners to court for hearing s during the relevant time period

. See § 18

- 1

- 405(6)(d). And, finally, they argue that the speedy trial deadline could have been tolled because the prosecution could not obtain necessary evidence, despite its due diligence. See § 18

- 1

- 405(6)(g)(I)

.9

¶19 As we have previously noted, COVID

- 19 “has wreaked havoc on just about every aspect of our lives. The criminal justice system has not been spared from the ravages of this malady. In particular, trial courts have struggled with effectuating a defendant’s statutory right to speedy trial amid this unparalleled public health
crisis. ” Lucy , ¶ 1 , 467 P.3d at 334

. This case presents a textbook example of this

st ruggle. Nunez was set to appear at a pretrial readiness conference in the first months of the emergency. At the time of the April 30 hearing, the Chief Judge in
the Eighteenth Judicial District had declared that no juries would be impaneled , and the Arap ahoe County Sheriff’s Office was not transporting detainees to court for in

- person proceedings. The parties and the court were confronted with the extremely difficult question of how to proceed under the circumstances without violating Nunez’s speedy tria l right

. ¶20 One possibility would have been for the trial court to declare a mistrial in light of the recent amendment to Crim P. 24(c), giving the courts authority to declare a mistrial if a public health emergency made it impossible to impanel a fair jury. I n fact, t he People argue that the district court effectively declared a mistrial at the April 30 hearing. But t h eir argument suffers from three flaws. First, the court cannot “effectively” declare a mistrial; it must explicitly do so. Second, the
cir cumstances of the May 28 hearing demonstrated that no mistrial had been
declared: T he People moved for a mistrial at that hearing , and the judge and both10

parties agreed that the speedy trial deadline at that point was still June 12 , which
it would not have been if a mistrial had been declared on April 30

. Finally, when the court actually declared a mistrial on July 29, it explained that “the April 30 th pretrial readiness conference would have been the date by which the [c] ourt would
have declared a mistrial due to the fact tha t I wasn’t able to call jurors into the building under any scenario

. ” ( E mphasis added

. ) The court further stated that “if everybody had appeared in an appropriate fashion at the pretrial readiness
confere nce, I would have declared a mistrial at that time , but I was just reluctant in doing so because of the absence of Mr. Nunez.” 1 (Emphasis added.) While it seems entirely possible that the court could have declared a mistrial on April 30,
these facts dem onstrate that it did not. A court may not declare a retroactive mistrial in order to get around the mandatory deadlines set by Colorado’s speedy
trial statute.

1 While the court did not explicitly say so, its concern about Nunez’s absence was presumably derived from a defendant’s constitutional right to be present at all critical stages of a trial. See United States v. Gagnon , 470 U.S. 522, 526 (1985). We have n ever held that the declaration of a mistrial is a critical stage of the proceeding at which the defendant has a right to be present. Assuming, however, that it is, the right to be present is not absolute. See Luu v. People , 841 P.2d 271, 274 (Colo. 1992) (noting that allegations of a denial of the right to be present are scrutinized under the harmless error standard). Moreover, Crim

. P. 43 had been amended by the time of these hearings to permit a consenting defendant to appear by “interactive audiovisua l device” at any proceeding not involving a jury. Crim. P. 43(f).11

¶21 The People next argue tha t certain days should have been excluded from the
calculation of Nunez’s speedy trial deadline because the Arapahoe County
Sheriff’s Office was not at the time responding to writs to deliver defendants to
the courts because of the Chief Judge ’s O rder prohibiting in

- person hearings. They note that section 18

- 1

- 405(6)(d) provides for the exclusion of “[t]he period of delay resulting from the .

. . unavailability of the defendant.” While this statutory provision might have provided an avenue for exten ding Nunez’s speedy trial deadline, the People did not present th is argu ment to the district court , and the court did not make any finding s with regard to th is issue

. For this reason, we do not consider this argument.
¶22 Finally, the People argue that Nunez’s speedy trial period should have been
extended because section 18

- 1

- 405(6)(g)(I) permits the prosecution to request a continuance and exclude the resulting time from the calculation of the speedy trial deadline when “[t]he continuance is granted because of the unavailability of
evidence material to the state’s case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe
that this evidence will be available at the later date.” Here, again, it is possible that the court could have granted a c ontinuance on these grounds. But the prosecution moved for such a continuance on April 30 , and the trial court did not rule on the
motion. T he record contains no suggestion that any further motion for a12

continuance under section 18

- 1

- 405(6)(g)(I) was pre sented to the court. Moreover, at the July 29 hearing, the court explicitly stated that its denial of the motion to dismiss was premised on its declaration of a mistrial retroactive to April 30.


### I V
. Conclusion
¶23 Because the trial court could not decla re a retroactive mistrial after the speedy trial deadline had passed , the charges against Nunez must be dismissed with prejudice. Accordingly, we now make the rule absolute.